Opinion
Nos. 05-05-01525-CR, 05-05-01526-CR
Opinion Filed November 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-72153-Hp F04-72154-HP. Affirm.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
OPINION
Appellant appeals two convictions for aggravated sexual assault of a child under fourteen years of age. In three points of error, appellant generally contends the trial court erred in (1) admitting expert testimony regarding the truthfulness of the victim, and (2) admitting hearsay statements complainant made to his therapist. For the following reasons, we affirm the trial court's judgments. At trial, the twelve-year-old complainant testified that appellant, who is married to his aunt, began sexually abusing him when he was seven years old. The first time appellant sexually assaulted complainant, complainant was spending the night at his aunt's house. Complainant's aunt was home, but she was sleeping. Appellant stood in front of complainant, who was sitting on a couch, and demanded complainant perform oral sex on him. The next assault occurred about a month later, again at complainant's aunt's house. Complainant was in the bathroom when appellant entered. Appellant pulled complainant's pants down, bent complainant over, and "stuck his penis in [complainant's] behind." The assaults continued on a regular basis for several years. Complainant did not initially tell any adults what appellant was doing because he was afraid to upset his mother. The first adult complainant eventually told was his school counselor, Cathy Stark. Complainant was seeing Stark because he was having problems in school. Cathy Stark testified as the State's outcry witness. Stark confirmed that complainant told her appellant had been sexually assaulting him. She convinced complainant to tell his mother, who in turn reported the offense to police. In his first point of error, appellant contends the trial court erred in admitting "expert" testimony that complainant seemed like a "truthful person." During Stark's testimony, the prosecutor asked her whether "she had an opinion as to [complainant's] character for truthfulness." Appellant objected that the question was "improper," was invading the province of the jury, and that Stark was not "qualified" to give such an opinion. The trial court overruled appellant's objection. On appeal, appellant contends the trial court erred in overruling his objection because expert opinion testimony is not admissible to show a particular witness is telling the truth. Appellant misunderstands or misconstrues the only question he objected to in the trial court. Specifically, appellant objected to the prosecutor's question concerning the school counselor's familiarity with complainant's character for truthfulness. This question occurred only after appellant attacked complainant's credibility. Specifically, appellant cross-examined the child regarding an allegation he made to Stark about his mother "whipping" him. Complainant admitted lying to Stark about the whipping. If a witness's credibility is attacked, opinion or reputation testimony regarding the witness's character for truthfulness is admissible under rule 608. TEX.R. EVID. 608. Therefore, the trial court did not err in overruling appellant's objection to the prosecutor's question concerning Stark's familiarity with complainant's character for truthfulness. We overrule appellant's first point of error. In his second and third points of error, appellant contends the trial court erred in admitting statements appellant made to his therapist Wynne Middledorf. Middledorf was permitted to testify, over appellant's hearsay objections, about statements complainant made to him during their therapy. Middeldorf's progress reports, which contained statements regarding the abuse, were also admitted. The State proffered the evidence under the "statements for purposes of medical diagnosis or treatment" exception to the hearsay rule. On appeal, appellant asserts such statements were not made for purposes of medical diagnosis or treatment as contemplated by the rules of evidence. See Tex. R. Evid. 803(4). According to appellant, the error was reversible because the hearsay concerned specific details of the offense, bolstered complainant's credibility, and there was no physical evidence or admissions to otherwise prove appellant's guilt. Assuming the trial court erred in admitting the statements to his therapist, we conclude any error was harmless. We must disregard a non-constitutional error that does not affect a criminal defendant's substantial rights. See Tex.R.App.P. 44.2(b); Bourque v. State, 156 S.W.3d 675, 677 (Tex.App.-Dallas 2005, pet. ref'd). We may not reverse for non-constitutional error if, after examining the record as a whole, we have a fair assurance that the error did not have a substantial and injurious effect or influence on the jury's verdict. Bourque, 156 S.W.3d at 677. We will not reverse for the admission of evidence where substantially similar evidence is introduced elsewhere at trial. See id. Here, the complainant provided explicit detailed testimony about the sexual assaults. Further, there was properly admitted evidence that complainant told his school counselor about the assaults. Under these circumstances, we conclude error, if any, did not have a substantial and injurious effect or influence on the jury's verdict. See id. (holding admission of child's out-of-court statements to therapist harmless). We overrule appellant's second and third points of error. We affirm the trial court's judgments.